Montesquieu v. Holder , 536 F. App'x 145 ( 2013 )

12-1002
Montesquieu v. Holder
BIA
A076 553 152
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 24th day of October, two thousand thirteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 BARRINGTON D. PARKER,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 PEDRO RAFAEL MONTESQUIEU,
14 Petitioner,
15
16 v. 12-1002
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Julia Greenberg, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Principal Deputy
26 Assistant Attorney General; Ernesto
27 H. Molina, Jr., Assistant Director;
28 Sheri R. Glaser, Trial Attorney,
29 Civil Division, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
8 review is DISMISSED.
9 Pedro Rafael Montesquieu, a native and citizen of the
10 Dominican Republic, seeks review of a February 21, 2012,
11 order of the BIA denying his motion to reopen proceedings.
12 See Pedro Rafael Montesquieu, No. A076 553 152 (B.I.A. Feb.
13 21, 2012). We assume the parties’ familiarity with the
14 underlying facts, procedural history, and issues presented
15 for review.
16 We lack jurisdiction over a petition for review where
17 the petitioner has been convicted of a controlled substance
18 offense, except to the extent the petitioner presents
19 questions of law or constitutional claims. See 8 U.S.C.
20 § 1252(a)(2)(C)-(D); Garcia-Padron v. Holder, 558 F.3d 196,
21 198-199 (2d Cir. 2009). Montesquieu presented evidence that
22 he was pardoned by the State of New York for a 2000
23 conviction for attempted criminal sale of a controlled
24 substance. Montesquieu does not, however, dispute the
2
1 finding that he was convicted of criminal possession of
2 marijuana in 1996, and was inadmissible based on that
3 conviction. Accordingly, the jurisdictional bar applies and
4 our review is limited to constitutional claims or questions
5 of law regarding the BIA’s denial of reopening.
6 Montesquieu raises no challenge to the BIA’s denial of
7 his motion as untimely and number-barred and we see no error
8 in the BIA’s decision. An alien seeking to reopen
9 proceedings is required to file a motion to reopen no later
10 than 90 days after the date on which the final
11 administrative decision was rendered and is permitted to
12 file only one such motion. See 8 U.S.C. § 1229a(c)(7)(A),
13 (C); 8 C.F.R. § 1003.2(c)(2). There is no dispute that
14 Montesquieu’s motion to reopen, filed in 2011, was untimely
15 and number-barred because his order of deportation became
16 final in 2008 and he had filed an earlier motion to reopen
17 proceedings.
18 To the extent Montesquieu challenges the BIA’s refusal
19 to reopen the proceedings sua sponte, we lack jurisdiction
20 over that decision, absent an indication that the agency
21 misperceived the legal background of the case in declining
22 to reopen sua sponte. See Mahmood v. Holder, 570 F.3d 466,
3
1 469 (2d Cir. 2009). The record indicates that Montesquieu
2 was charged with inadmissibility, not deportability, and
3 thus the pardon did not affect the finding of removability.
4 See 8 U.S.C. § 1227(a)(2)(A)(vi) (permitting waiver of
5 removability where the alien received a pardon); but see
6 generally 8 U.S.C. § 1182 (listing no waiver for pardoned
7 offenses). Moreover, the 1996 marijuana conviction
8 continued to be an independent basis for inadmissibility.
9 Montesquieu argues that the BIA misperceived the legal
10 background because it failed to consider that the pardon
11 rendered him eligible for cancellation of removal, and that
12 exceptional circumstances, in the form of hardship to his
13 family, warranted reopening. He failed, however, to raise
14 those arguments in his motion to reopen, and the arguments
15 are therefore waived. See Lin Zhong v. U.S. Dep’t of
16 Justice, 480 F.3d 104, 119-20 (2d Cir. 2007); 8 C.F.R.
17 § 1003.2(c)(1) (“[a] motion to reopen proceedings shall not
18 be granted unless it appears to the Board that evidence
19 sought to be offered is material and was not available and
20 could not have been discovered or presented at the former
21 hearing" and “must be accompanied by the appropriate
22 application for relief”).
23
4
1 For the foregoing reasons, the petition for review is
2 DISMISSED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DENIED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
5